Thirukkumaran, Thirumaran, Thirumanavalan Appellants 1 to 3 represented by father and guardian and next friend Dravidamani and Velayutha Vathiyar vs Varadarajan and Others

A.C. Arumugaperumal Adityan, J.—These appeals arose out of the decree and Judgment in O.S. No. 161 of 1987 on the file of Sub Court,

Virudhachalam.

The case of the plaintiff in brief is as follows:

Plaint ""A,B, and C"" schedule properties belonged to the plaintiff. The plaint schedule properties are the ancestral properties of the plaintiff, his

father/second defendant and his deceased brother. The said Mullainathan, who was the son of second defendant through his first wife

Soundarammal. The first defendant is the second wife of the second defendant. The plaintiff is the son of the second wife through the first

defendant. The second defendant, his son Mullainathan through his first wife Soundarammal and the plaintiff had partitioned the family properties

under a registered partition deed dated 9.10.1971. ""A"" schedule property was allotted to the plaintiff under the above said partition deed; ""B

schedule property was allotted to the second defendant till her life time under the above said partition deed ; ""A"" schedule property was also

allotted to Mullainathan under the partition deed dated 9.10.1971; ""B"" schedule property was allotted to the plaintiff under the above said partition

deed and ""C"" schedule property under the partition deed was left to be enjoyed in common. At the time of partition, the plaintiff was a minor. The

first defendant was appointed as a guardian of the minor plaintiff under the partition deed. The first defendant and the second defendant have no

right to alienate or encumber the properties allotted to the minor plaintiff under the said partition deed. The plaintiff''s brother Mullainathan died

intestate in the year 1972. The legal representatives of Mullainathan viz., Pattathal (Wife) and Umapathy (Daughter) had executed a settlement

deed in favour of the plaintiff in respect of the properties allotted to Mullainathan to the above said partition deed dated 9.10.1971 on 27.8.1973.

The properties comprised in the above said settlement deed executed by Pattathal and her daughter Umapathy is plaint ""B"" Schedule property,

even during the above said settlement, the plaintiff was a minor. Even under the above said settlement deed, the first defendant was shown as a

guardian of the minor plaintiff. The plaint ""C""schedule property was allotted to the second defendant under the partition deed dated 9.10.1971.

The second defendant was given right to enjoy the ""C"" schedule property till her life time. After the death of the second defendant, as per the terms

of the partition deed dated 9.10.1971, ""C"" schedule property shall devolve on the plaintiff and his brother Mullainathan. The plaintiff was born on

5.6.1967. Even at the time of partition dated 9.10.1971, and also during the period of settlement dated 27.8.1973, the plaintiff was a minor.

While, the plaintiff was a minor, he left the house and was able to secure a job at Chandigarh. The defendants 1 and 2 with a aim to deceive the

plaintiff, had executed sale deeds in respect of ""A B C"" schedule properties in favour of defendants 3 to 9. The plaintiff is not a beneficiary under

those sale deeds. The defendants 3 to 9 knowing that ""A B C"" schedule properties belonged to the minor plaintiff, deliberately purchased the

properties only to defeat the interest of the minor and the above said sale deeds will not bind the plaintiff. The third defendant has purchased Item

No. III in ""A"" schedule property, Item No. VI in ""B"" Schedule property and ""C"" schedule property on 10.10.1973 from the first and second

defendants for Rs. 6,000/-; the fourth defendant had purchased Item Nos 2 to 5 in ""B"" schedule property on 1.7.1974 for Rs. 2,750/-.

Subsequently, the fourth defendant had executed a sale deed in favour of the ninth defendant on 8.10.1982 for Rs. 8,300/-. So the sale deeds

obtained by the fourth defendant and ninth defendant are void documents. The fifth defendant had purchased Item No. I in ""A"" schedule property

on 11.6.1970 for Rs. 7,900/-; Item No. I in ""B"" schedule property on 2.7.1980 for Rs. 10,000/-; and sixth to eighth defendants have purchased

Item No. II in ""A"" schedule property on 6.5.1982 for Rs. 9,000/- from first and second defendants. Those sale deeds will not bind the plaintiff.

There was no consideration passed under the above said sale deeds. The above said sale deeds were executed by the first defendant and the

second defendants showing that the plaintiff was a minor. The plaintiff came to know about the sale deeds just six months prior to the filing of the

suit. On 26.9.1987, the plaintiff demanded defendants 3 to 9 to hand over the possession of the properties but they refused to do so. The suit is

not barred by limitation, since the plaintiff has filed the suit within three years from the date of attaining majority. Hence the plaintiff has filed the suit

for declaration that the sale deeds dated 10.10.1973, 11.6.1979, 2.7.1980, 6.5.1982. 8.10.1982 in favour of the defendants 3 to 9 executed by

the defendants 1and 2 are all void documents and also for recovery of possession of the plaint ""A, B"" schedule properties from defendants 3,5 to 9

and also for declaration that the plaintiff is entitled to ""C"" schedule property after the life time of the second defendant and also for mesne profits.

Defendants 1 and 2 have filed a joint written statement contending as follows:

The first and second defendants have no objection for the suit being decreed in favour of the plaintiff. Even at the time of execution of the sale

deed, the vendee knows that the properties belonged to the minor, only under the assurance given by the vendee, the sale deeds were executed by

these defendants. Even at the time of sale deed, the vendee knows that these defendants have no right or title in respect of the properties conveyed

under those sale deeds. No valuable consideration passed under those sale deeds. Due to poverty, these defendants had executed those sale

deed. The defendants three to nine are not bonafide purchaser for the value. The plaintiff, while, he was a minor, left for other State in search of a

job, only under wrong impression that the plaintiff will not return to home State, the defendants have executed the sale deeds. These defendants

have no right to execute the sale deed as correctly contended by the plaintiff.

The third defendant in his written statement has contended that the suit is barred by limitation. The date of birth of the plaintiff is 25.4.1966 and

not 5.6.1967. The plaint has been filed by the plaintiff, after the plaintiff has attained the age of 21. This defendant is not aware of the partition

entered into between the plaintiff, his father and Mullainathan in the year 1971 and equally this defendant is not aware of the settlement deed dated

27.8.1973. Under the school transfer certificate, the plaintiff cannot claim any right. The plaintiff is not entitled to the relief asked for in the plaint.

This defendant had purchased Item No. III in plaint ""A''schedule property; Item No. VI in ""B"" schedule property and ""C"" schedule property from

the first defendant and second defendant, who has executed as the guardian of the plaintiff, and that from the date of purchase, this defendant is in

possession and enjoyment of the said properties after paying land tax. This defendant has also prescribed title by way of adverse possession. Only

to discharge the antecedent debts, the defendants 1 and 2 have executed the above said sale deeds. The suit has been filed only under the

instigation of defendants 1 and 2 collusively. Hence, the suit is liable to be dismissed with costs.

The fifth defendant in his written statement has contended that defendants 1 and 2 have executed a sale deed for 83 cents in Item No. I in plaint

A'' schedule property on 11.6.1979. On 2.7.1980, this defendant had purchased 66 cents in Item No. I in ""B"" schedule property. The four

boundaries given to those properties in the plaint schedule are not correct. Only to discharge the previous family debts, the above sale deeds were

executed by the defendants 1 and 2 in favour of this defendant. The averment regarding the family partition dated 9.10.1971 and the settlement

deed dated 27.8.1973 and the allegation that the plaintiff left the house, while, he was a minor and that he came to know about the sale deed only

six months prior to the filing of the suit are all travesty of truth. The suit is barred by limitation. The correct date of birth of the plaintiff is 25.4.1966

and not 5.6.1967. The plaintiff ought to have filed the suit on or before 25.4.1987. Hence the suit is barred by limitation.

The defendants 6 to 8 have filed a joint written statement contending that these defendants have purchased Item No. II in plaint ""A""schedule

property from the defendants 1 and 2 on 7.5.1982. In respect of the said property, patta has been granted in favour of the plaintiff''s father and

mother. The house in Item No. II to ""A"" schedule property was constructed with the funds of the first defendant. The plaintiff has no right or title in

respect of Item No. II to plaint ""A"" schedule property.

The ninth defendant in his written statement has contended that the date of birth of the plaintiff as stated in the plaint is not admitted by this

defendant. The suit is barred by limitation. The plaintiff has filed the suit within three years from the date of attaining majority. This defendant is a

bonafide purchaser for the value from the fourth defendant, who sold Item Nos II to V of ""B"" schedule property under a sale deed dated 1.7.1974

for proper and valuable consideration. The sale deed was executed to discharge family debts which will bind the plaintiff. After enjoying for eight

years, the fourth defendant sold the said property on 8.10.1982 to the ninth defendant for Rs. 8,300/-. This defendant has prescribed title to the

said property by way of adverse possession. Pending suit, the fourth defendant died, the plaintiff has not taken any steps to implead the legal

representatives of the fourth defendant, but he has given up the claim against the fourth defendant. The plaintiff has failed to set aside the alienation

within three years from the date of attaining majority. Hence the suit is liable to be dismissed.

On the above pleadings, the learned trial Judge has framed as many as ten issues and on the basis of the oral and documentary evidence has

come to a conclusion that the plaintiff is entitled for the relief asked for in the plaint and accordingly decreed the suit as prayed for. Aggrieved by

the findings of the learned trial Judge, the third defendant has filed A.S. No. 571/1992, the sixth to ninth defendants have filed A.S. No. 560 of

1992 and the fifth defendant has filed A.S. No. 588/1992.

Now the points for determination in these appeals are

(i) Whether the date of birth of the plaintiff is 5.6.1967 as per Ex A1 or 25.4.1966 as per Ex B9?

(ii) whether the plaintiff has filed the suit within three years from the date of attaining majority as per Section 8 of the Hindu Minority and

Guardianship Act, 1956 and under Schedule 60 of the Limitation Act?

Point No. 1:

The plaintiff has filed the suit to set aside Exs B1 to B3, B27 and B36 said to have been executed by the first and second defendants in favour of

third defendant, fifth defendant and fourth defendant respectively on the ground that the defendants 1 and 2 being the parents of the plaintiff have

executed those sale deeds while, the plaintiff was a minor and that the above said sale deeds will not bind him, since he had filed the suit to set

aside the sale within three years from the date of attaining majority. Section 8 of the Hindu Minority and Guardianship Act, 1956 runs as follows:

1) The natural guardian of a Hindu minor has power, subject to the provisions of this Section, to do all acts which are necessary or reasonable and

proper for the benefit of the minor or for the realization, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor

by a personal covenant.

2) The natural guardian shall not, without the previous permission of the Court:

a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or

b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor

will attain majority;

3) Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of

the minor or any person claiming under him.

4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in Sub-section (2) except in case of necessity or for an

evident advantage to the minor.

5) The Guardians and Wards Act, 1890 shall apply to and in respect of an application for obtaining the permission of the Court under Sub-

section(2) in all respects as if it were an application for obtaining the permission of the Court u/s 29 of that Act, and in particular:

a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of Section 4-A thereof;

b) the Court shall observe the procedure and have the powers specified in Sub-sections (2),(3), and (4) of Section 31 of that Act; and

c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the act mentioned in Sub-section (2) of this

Section to the Court to which appeals ordinarily lie from the decisions of that Court.

(6) In this Section"" Court"" means the City Civil Court or a District Court or a Court empowered u/s 4-A of the Guardians and Wards Act, 1890,

within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable

property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of

the property is situate.

Admittedly, the properties sold under Exs B1 to B3, B27 and B36 are the properties of the plaintiff allotted to him under Ex A2 partition deed

dated 9.10.1971. Even at the time of Ex A2 partition deed, the plaintiff was a minor. In all the above said sale deeds Exs B1 to B3, B27 and B36,

the sale deeds have been executed on behalf of the plaintiff by the guardian, his father/second defendant. Under such circumstances, as per Section

8(2) of the said Act, only the guardian, the father/second defendant ought to have obtained prior permission from the Court to execute those sale

deeds in respect of the minor''s property. Admittedly, the second defendant who is the father of the plaintiff has not obtained any permission from

the Court as contemplated u/s 8(2) of the said Act before executing Exs B1 to B3, B27 and EX B36 sale deeds. The defence in the suit was that

the plaintiff, within three years from the date of attaining majority, has not filed the suit to set aside the above said sale deeds as per Article 60 of

the Limitation Act.

The learned Counsel appearing for the appellant would vehemently contend that Ex A1, the date of birth of the plaintiff is 25.4.1966 and not

5.6.1967. In support of her contention, the learned Counsel would rely on Ex B9 birth certificate which shows that a boy was born to the couple

first defendant and the second defendant on 25.4.1966. But Ex B9 is not specifically stated that the registration of the birth was relating to the

plaintiff. On the other hand, it is the case of the plaintiff that Ex B9 relates to his brother, who died soon after the birth. The mother of the plaintiff

was examined as D.W1 to depose that the plaintiff is her fourth child and before the plaintiff, she gave birth to a male child, who died soon after the

birth. An independent witness P.W.2 was also corroborated by the evidence of D.W.1 to the effect that the plaintiff is the fourth child of his

parents viz., first defendant and second defendant and a third child born to first and second defendant was a male and the third child died soon

after the birth. So from Ex B9, it cannot be said, as rightly observed by the learned trial Judge that it relates only to the plaintiff. On the other hand,

the plaintiff has filed his school transfer certificate issued by the Headmaster, Government School, Avinangudi, South Arcot District to show that

the date of birth of the plaintiff is 5.6.1967. The learned Counsel appearing for the appellant relying on the decision reported in C.V. Vijayarangam

v. The State Bank of India, represented by the Chief General Manager, 1st Line Beach, Madras -1 and Anr. 99 L.W. 738 and contended that u/s

35 of the Evidence Act, the entries made in a public record or of official register about the age cannot be taken as conclusive proof. It has been

observed in the above said dictum that u/s 35 of Evidence Act, an entry in a public record of official register or record, though a relevant fact is not

conclusive proof of what is entered there. It has been further decided that if there is a dispute arises over such entry, it has got to be resolved in an

ordinary civil Court and no one can insist that the entry must be acted upon as conclusive proof. But in this case, the plaintiff has filed Ex A1 school

transfer certificate to show his date of birth. Ex A1 was issued by the Headmaster of the school in which the plaintiff has studied X standard. The

plaintiff is the custodian of Ex A1. Now the burden shifts on the defendants to show that Ex A1 is not a genuine one but a forged one. To show

that Ex A1 is a forged and concocted document, created for the purpose of this case, the defendants have not let in any evidence, except Ex B9

which does not contain the name of the plaintiff. The burden is on the defendants to show that Ex B9 relates to the plaintiff, but there is no evidence

on record to show that Ex B9 relates to the plaintiff. The decision relied on by the learned Counsel appearing for the appellant in H. Subba Rao v.

The Life Insurance Corporation of India and Anr. AIR 1976 Karnataka, 231 wherein it has been held that an entry in the register of birth is not

conclusive evidence of the disputed date of birth. So also, is an entry made pursuant to the direction of the Magistrate u/s 13(3). The policy of law

embodied in Section 13 is to avoid manipulation in the entries relating to the date of births and deaths. The facts of the said case is that the

petitioner in that case submitted the school or college certificate in proof of his age and educational qualification. A reminder was issued on

16.10.1968 to the same effect. Thereafter, the petitioner produced the school certificate in which his date of birth was entered as 15.6.1917. The

Corporation did not accept that certificate. It wanted to know the basis upon which the said entry was made in the school register. On 6.1.1971, it

asked the petitioner to submit a birth certificate from the Registration Authorities at the place of birth. The petitioner,by his reply dated 11.1.1971,

pleaded his inability to produce such certificate on the ground that he was born in a small village about 55 years ago and that there was no system

of recording the births and deaths by statutory Authorities. On 12.3.1971, the Corporation informed the petitioner that it was unable to accept the

changed date of birth submitted by him. The petitioner, however, pressed his claim repeatedly. On 26/29.6.1971, the Corporation again reiterated

that the Central Office of the Corporation was unable to reconsider the matter on the basis of the school certificate without the basis upon which

the said entry was made. Further correspondence on the matter yielded no positive result. The petitioner, thereupon, took a very ingenious course.

He approached the Magistrate, u/s 13(3) of the Registration of Births and Deaths Act, 1969 requesting the Magistrate to issue a direction to the

Registrar of Births and Deaths, Bangalore, to register the date of his birth as ""15.6.1917"". On that application, the Magistrate made a summary

enquiry. He considered the certificate issued by the Head Master of the School in which the petitioner studied and also the affidavits of the

petitioner and his father''s sister''s son and observed that evidence was quite natural and probable to hold that the petitioner was born on

15.6.1917. Accordingly he directed the Registrar to register the said date as the date of birth of the petitioner in the relevant register. In obedience

to the said direction, the Registrar entered the said date in the register maintained for the purpose. The petitioner, on receiving a copy of the said

entry, produced the same before the Corporation, with a request to accept it. The Corporation, however, refused to admit the said date. Hence

the petitioner had challenged the order of the Corporation under Article 226 of the Constitution of India. While disposing of the petition, it has

been observed as follows:

As I said in the beginning, the date of birth of the petitioner was entered in the Service Register with the knowledge and consent of the petitioner by

his previous employer and that Service Register was transmitted to the Corporation when the petitioner''s services were taken over by the latter.

Thereafter, the same date has been admitted in his insurance Policies taken by the petitioner. The Corporation wants to rely upon that entry (i.e.,

6.2.1916) since it has also got the support of the horoscope produced by the petitioner on two occasions; whereas another date (i.e., 15.6.1917)

has no support except the school certificate and the birth extract produced by the petitioner. The Corporation did not want to change the entry in

the Service Register, perhaps on the ground that the subsequent date given by the petitioner was not reliable. The Corporation was competent to

take that decision having regard to the circumstances of the case.

The facts of the case differs from the facts of the present case because in that case there is no entry in the school records or before any other forum

with regard to the date of birth whereas in the case on hand the only one document relied on and produced by the plaintiff is his school transfer

certificate which shows that the date of birth of the plaintiff is 5.6.1967. So the case relied on by the learned Counsel for the appellant in 99

L.W.738 AIR 1976 Karnataka 231(stated supra) will not be applicable to the facts of the present case and per contra, the learned Counsel

appearing for the first respondent relied on M. Rangasamy Vs. State of Tamilnadu, and contended that the evidentiary value of medical certificate

regarding age, transfer certificate issued by the school will establish the correct date of birth. The facts of the said case is that a writ petition was

filed by the petitioner to quash the order of the third respondent dated 17.12.1996 and to direct the respondents to accept the date 1.7.1945 as

correct date of birth of the petitioner. The petitioner was appointed initially as Head Mazdoor in the Public Works Department on 1.1.1965 and

was holding the post of Works Inspector Grade II and working in the Lower Bhavani Basin Sub Division, Kangayam, Erode District at the time of

filing the original application. According to the petitioner at the time of joining into the service petitioner had produced the Transfer certificate issued

by the Government High School, Perundurai, Erode District, and the ESLC certificate, which was equivalent to Class VIII wherein the date of

birth of the petitioner has been mentioned as 10.9.1940. The petitioner further stated that he had examined himself at the Government Hospital,

Modakurichi on 24.11.1969 for determination of his age and according to the certificate issued by the Hospital, his date of birth is mentioned as

1.7.1945. Based on the said certificate, petitioner submitted his application before the third respondent to correct the date of birth entered in the

service register as 1.7.1945 instead of 10.9.1940. Relying on the decision of the Apex Court in State of Punjab Vs. Mohinder Singh, , the learned

Judge of this Court has held that school record will have more probative value than a horoscope as regards age of a person recorded in school

certificate. The learned Judge has also extracted the passage from the above said Judgment of the Apex Court which reads as under:

In terms of Section 32, Clause 5 of the Indian Evidence Act,1872(in short the Evidence Act''), the evidentiary value of a horoscope has to be

considered. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the

school leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was

not correct, which was not discharged.

Here also, the defendants have not adduced any rebuttal evidence to prove that the entries in Ex A1 regarding the date of birth of the plaintiff was

not correct.

The learned Counsel appearing for the appellant would vehemently contend that Ex A1 authenticity cannot be relied upon as per the decision in

Ravinder Singh Gorkhi Vs. State of U.P., . The petitioner in that case was convicted in a criminal case charged under Sections 302, 392, 395, and

364 of I.P.C. It was contended on behalf of the petitioner/accused that at the time of committing the offence, he was only a minor by producing the

school certificate. It has been held by the Apex Court in the dictum that school leaving certificate, which was not issued by the person, who was in

school at the time and a person admitted therein cannot be relied upon. The petitioner/accused in that case never raised this plea at the time of trial.

Only at the SLP stage, it was contended on behalf of the accused that he was a minor by producing a school transfer certificate. In that case, the

transfer Certificate for the accused was not produced by the accused but a person who had no personal knowledge about the certificate had

produced. Only under such circumstances, it has been held by the Apex Court that as contained in Section 35 of the Evidence Act, School leaving

certificate was not original one but it is a second copy which was produced by a person, who has no knowledge about the school leaving

certificate, cannot be admitted in evidence. But that is not the case herein. Ex A1 was produced by the plaintiff himself who had personal

knowledge about his date of birth and he is the custodian of Ex A1 certificate which was handed over to him by the School authorities. So the

dictum in Ravinder Singh Gorkhi Vs. State of U.P., relied on by the learned Counsel appearing for the appellant is not applicable to the facts of the

present case.

Further it is seen from Ex A2, that there was a partition between the plaintiff, while he was a minor, and his father and Anr. deceased brother

and the defendants 1 and 2 have executed the above said sale deeds Exs B1 to B3 and B27 in respect of the properties allotted to the plaintiff

under Ex A2 partition deed dated 9.10.1971. Further the property got under Ex A3 settlement deed by the mother on behalf of the plaintiff, while

he was a minor, was also sold under Ex B37 sale deed in favour of the fourth defendant. Under Article 60 of the Limitation Act, the plaintiff is

entitled to set aside the sale deeds executed by his guardian within three years from the date of attaining majority. As per Ex A1, the plaintiff''s date

of birth is 5.6.1967. Hence I hold on the point that the date of birth of the plaintiff is 5.6.1967 as per Ex A1. Point No. 1 is answered accordingly.

Point No. 2:

The suit has been filed in the year 1987. The plaintiff will become Major on 5.6.1985. So within three years from the date of attaining majority, the

plaintiff has filed the suit. The learned trial Judge, after considering all those points has held in Issue Nos 1 and 2 that the plaintiff has filed the suit

within three years from the date of attaining majority as per Section 8 of the Hindu Minority and Guardianship Act, 1956 and under Article 60 of

the Limitation Act. Point No. 2 is answered accordingly.

In the result, A.S. Nos. 560, 571 and 588 of 1992 are dismissed confirming the decree and judgment in O.S. No. 161 of 1987 on the file of

Sub Court, Vridhachalam. In the circumstances of the case, parties are directed to bear their own costs.